RealNetworks court loss a reminder about limits of “fair use”

RealNetworks suffered a serious blow late Tuesday night in its ongoing DMCA drama with the movie studios. Judge Marilyn Patel granted a temporary injunction against the company, barring it from selling its RealDVD copying software thanks to language in Real's license with the DVD Copy Control Association (DVD CCA). Patel did not directly include the issue of fair use as part of her ruling, though she did make an observation about its relevance to the DMCA, asserting that it can't be used as a defense against DMCA circumvention violations.

This case addresses both RealDVD (a software package) and, to a lesser extent, a prototype hardware product that would have ripped DVDs directly to a hard drive and hosted the files as a media server. Real originally tried to launch RealDVD in September of 2008 as a product which could rip DVDs to a user's hard drive and play them back, while leaving CSS encryption intact. The software did not modify or change the files, and—unlike similar software packages—Real had even obtained an official license from the DVD CCA to do so. Sounds like everything was on track, right? Wrong.

That same month, the MPAA filed a lawsuit against Real for violating DMCA anticircumvention rules; DVD licensees must have the physical disc in the drive when decrypting a movie, and the RealDVD software doesn't do that.

"RealNetworks' RealDVD should be called StealDVD," said an MPAA exec at the time. Real was hit with a temporary restraining order in October 2008 and was forced to take the product down from its website at that time.

Between then and now, a fierce back-and-forth has been going on between Real, the MPAA, and the DVD CCA. The MPAA has accused Real of numerous infractions involving both the DMCA as well as the case itself—including the destruction of evidence.

The DVD CCA then got involved (presumably due to pressure from the movie studios); despite licensing CSS specifications, video descramblers, authentication modules for CSS, encryption modules, and authentication modules for DVD drives to Real last year, the organization turned around and claimed that Real had broken "hidden and secret contractual terms" in its licensing agreement.

Judge Patel's decision focused largely on Real's license with the DVD CCA; she noted in her ruling that the organization "retains the ability to... force licensees to remove non-compliant products from the market."

One part of the CSS Procedural Specifications license says that licensees can't sell devices or software that are designed to circumvent copy protection (Real says it licensed these technologies so that it could keep copy protections in place, not circumvent them). This, in addition to other confidential parts of the agreement, played a role in Patel's decision to issue a preliminary injunction against Real.

"RealDVD makes a permanent copy of copyrighted DVD content and by doing so breaches its CSS License Agreement with DVD CCA and circumvents a technological measure that effectively controls access to or copying of the Studios’ copyrighted content on DVDs," she wrote.

Patel acknowledged that the DMCA does allow for a limited "fair use" exception for the individual consumer making personal copies, but that companies manufacturing software or devices to enable it are still running afoul of the law. "Fair use is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work," she wrote. "[F]air use can never be an affirmative defense to the act of gaining unauthorized access."

This is similar to the US Copyright Office's decision to make cell phone unlocking legal in 2006 (for three years) under the DMCA. It was technically legal for users to do so on their own, but still illegal for any company to create or sell a product that would help them do it. Of course, this effectively kept the activity illegal—most users can't rip DVDs or unlock their cell phones without the help of a third party.

Unsurprisingly, Real was unhappy with the decision. "We are disappointed that a preliminary injunction has been placed on the sale of RealDVD. We have just received the Judge's detailed ruling and are reviewing it," the company told Ars via e-mail. "After we have done so fully, we'll determine our course of action and will have more to say at that time."

As pointed out by the EFF, this doesn't spell good things for Real or anyone else looking to enter into the market, even if Real decides to appeal. "[G]iven the pace of the federal appeals process, this means that the RealDVD products will likely stay off the market for at least a year," wrote EFF staff attorney Fred von Lohmann.

The ruling won't affect the widespread availability of other, completely unauthorized DVD ripping software (Handbrake, anyone?), showing once again that this war is less about piracy and more about the movie industry's hunger for control.

Search PACER for case number 3:08-cv-04548-MHP in the US District Court for the Northern District of California

Jacqui Cheng
Jacqui is an Editor at Large at Ars Technica, where she has spent the last eight years writing about Apple culture, gadgets, social networking, privacy, and more. Emailjacqui@arstechnica.com//Twitter@eJacqui

The DVD CCA then got involved (presumably due to pressure from the movie studios); despite licensing CSS specifications, video descramblers, authentication modules for CSS, encryption modules, and authentication modules for DVD drives to Real last year, the organization turned around and claimed that Real had broken "hidden and secret contractual terms" in its licensing agreement.

Are the afraid of the combination of RealDVD and Netflix allowing users to create copies of rented DVDs? IIRC, the RealDVD product leaves CSS intact and adds another layer of DRM that will only allow the original PC/Device that ripped it to play it back. So some people will get copies of DVDs for $15 a month, so what? The people smart enough to do that probably already do it with DVD Decrypter and are then free to distribute it as they like...

"Fair use is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work," she wrote.

So let me get this straight, as the consumer we can make personal copies as long as we do not break the DRM, but pretty much all the software that can be used to rip DVD remove or alter the DRM therefore making the process illegal.

So a company decides to make a product that does not alter the DRM, and directly copies the contents of the DVD DRM and all so that the consumer can make their personal copy without doing anything illegal, and making said software is also illegal.

Why don't our lobbyist funded political puppets stop dancing around and just admit that they want to make sure it is illegal for us to make copies for personal use.

So a company decides to make a product that does not alter the DRM, and directly copies the contents of the DVD DRM and all so that the consumer can make their personal copy without doing anything illegal, and making said software is also illegal.

I think the circumvention here is not removing the CSS, but allowing a copy to be made. After all it's hard to argue that you haven't circumvented the copy protection, when the main selling point of your product is to make copies.

"Fair use is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work," she wrote.

Patel acknowledged that the DMCA does allow for a limited "fair use" exception for the individual consumer making personal copies, but that companies manufacturing software or devices to enable it are still running afoul of the law. "Fair use is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work," she wrote. "[F]air use can never be an affirmative defense to the act of gaining unauthorized access."

So the trick now is to make DRM so technologically complex, that very few individuals would be able to implement an entire solution themselves. And since it is illegal to collaborate/traffic in solutions, you are done.

"It was technically legal for users to do so on their own, but still illegal for any company to create or sell a product that would help them do it. Of course, this effectively kept the activity illegal—most users can't rip DVDs or unlock their cell phones without the help of a third party."

"Hello, sir. May I offer you a drink from the well in my garden? You may have as much as you'd like!""I'd love to! Where is this garden?""Oh, it's inside that walled off area there.""Oh, I see. Well, how may I pass the wall?""You may not.""..........""It is impermissible for you to pass through, cross over, or tunnel under the wall.""But....I may drink from the well inside?""Certainly. Please. Help yourself.""But how may I get to the well?""Well, it's inside the wall.""And I may not pass the wall?""Correct."

So a company decides to make a product that does not alter the DRM, and directly copies the contents of the DVD DRM and all so that the consumer can make their personal copy without doing anything illegal, and making said software is also illegal.

I think the circumvention here is not removing the CSS, but allowing a copy to be made. After all it's hard to argue that you haven't circumvented the copy protection, when the main selling point of your product is to make copies.

It does seem so. Real should modify their software so that it doesn't perform the actual copying. The used should manually copy the VIDEO_TS folder using the Finder/Windows Explorer and the Real app should apply any additional DRM on the copy. The MPAA can go after Apple/Microsoft for enabling the end user to make a copy of their copyrighted material, but that's not Real's problem any more.

As much as I dislike Real for their crappy media software, I have to give them credit for this fight.

I swear, the laws locking up media these days are getting as convoluted and impossible to honor as the US Tax Code. Simply watching a movie at a theater probably violates at least one of them if you really looked into it.

Originally posted by severusx:Are the afraid of the combination of RealDVD and Netflix allowing users to create copies of rented DVDs? IIRC, the RealDVD product leaves CSS intact and adds another layer of DRM that will only allow the original PC/Device that ripped it to play it back. So some people will get copies of DVDs for $15 a month, so what? The people smart enough to do that probably already do it with DVD Decrypter and are then free to distribute it as they like...

The MPAA doesn't care (all that much) about individual consumers going to some random website (as far as they're concerned) and downloading a product of dubious legality. What they care about is opening the floodgates.

From their point of view, the second this product is declared completely legal, Real is going to be putting flashing billboards in Times Square: "buy our product and copy all your movies!" Then they will follow up with a successor product that that gets rid of the device and just uses a partition on your HDD -- if you want a movie on your computer, just pop it in for a minute and go! Then that product gets bundled onto every new computer sold in North America, and the game's over for them.

And really, except for the part about encryption, that's pretty much what happened with music, and it gutted the sale of CDs.

The only part they're not getting is that sooner or later there will be no way to put the genie back in the bottle on this one, and that they need to try to work out solutions that make it easier to legally license music than to steal it.

Originally posted by wanorris:The MPAA doesn't care (all that much) about individual consumers going to some random website (as far as they're concerned) and downloading a product of dubious legality. What they care about is opening the floodgates.

From their point of view, the second this product is declared completely legal, Real is going to be putting flashing billboards in Times Square: "buy our product and copy all your movies!" Then they will follow up with a successor product that that gets rid of the device and just uses a partition on your HDD -- if you want a movie on your computer, just pop it in for a minute and go! Then that product gets bundled onto every new computer sold in North America, and the game's over for them.

That's the general idea, though I'd say that's more soft-spoken than is warranted. To the RIAA and MPAA piracy should be 0; no exceptions. Thus anything that has even the slightest possibility of contributing even the slightest bit to piracy should be fought tooth and nail. To them, no price is too high to achieve the goal of 0 piracy, provided they aren't the ones who have to pay said price.

Comprehensible, but staggeringly self-centered. This is why we expect the government to balance the desires of people such as them versus the public; and the government has progressively failed at this task.

Originally posted by wanorris:And really, except for the part about encryption, that's pretty much what happened with music, and it gutted the sale of CDs.

... which, when fought against in the same manner, ended up ensuring that the companies that focused hard on enforcing physical sales to delay the inevitable and got leap frogged by the one that focused on providing fair service to the customer and got online sales "right".

Now the MPAA has a big of a step ahead in the DRM game. But ultimately if they don't fight this in a more positive manner, offering alternatives that don't SUCK for their [potential] customers, rather than focusing on their DRM wet dreams they are ultimately going to cornhole themselves.

Are you kidding me? A federal court has once again decided that it is entirely reasonable to pass a law that makes something both legal and impossible at the same time? And they truly and sincerely believe that this is exactly what the framers of our Constitution had in mind when they enshrined our rights as individuals? Is there one fucking shred of logic or reason anywhere in our entire God damned legal system?

Originally posted by ReaderBot:Are you kidding me? A federal court has once again decided that it is entirely reasonable to pass a law that makes something both legal and impossible at the same time? And they truly and sincerely believe that this is exactly what the framers of our Constitution had in mind when they enshrined our rights as individuals? Is there one fucking shred of logic or reason anywhere in our entire God damned legal system?

Yes. Logically, we should do what big Content tells us we can and cannot do.

That's the general idea, though I'd say that's more soft-spoken than is warranted. To the RIAA and MPAA piracy should be 0; no exceptions. Thus anything that has even the slightest possibility of contributing even the slightest bit to piracy should be fought tooth and nail. To them, no price is too high to achieve the goal of 0 piracy, provided they aren't the ones who have to pay said price.

Comprehensible, but staggeringly self-centered. This is why we expect the government to balance the desires of people such as them versus the public; and the government has progressively failed at this task.

Progressively failed?! The government is the ONLY REASON why we have to put up with this shit. If it wasn't for the DMCA we could crack Blueray and CSS and all that crap all we wanted, just as long as we didn't violate copyrights then it would all be perfectly legal.

The government is the _cause_. They are not failing at limiting the problem... they are the ones that created the problem in the first place!

Without the DMCA it would be perfectly legal to sell hardware and software that breaks CSS encryption. Just like it's (still) perfectly legal to sell cable boxes that descramble analog signals... Those boxes are only illegal once you use them to 'steal' cable (and thus break copyrights law). When the DMCA was signed into law it gave MPAA and RIAA the ability to set restrictions on the ability for other people's software and hardware to be compatible with their content.

It does not make violating copyrights illegal... the DMCA makes having the _capabilities_ of violating copyrights illegal.

When MPAA and RIAA use DRM to control consumers then they are just excersizing their rights as granted, enforced, and preserved by USA government.

When you get fined (and eventually thrown in jail if you refuse to comply) it's not the MPAA-ran courts that are doing it.. it's not the RIAA that are going to send their private security forces to your house. It's your friends in the federal government that are doing it.

So a company decides to make a product that does not alter the DRM, and directly copies the contents of the DVD DRM and all so that the consumer can make their personal copy without doing anything illegal, and making said software is also illegal.

I think the circumvention here is not removing the CSS, but allowing a copy to be made. After all it's hard to argue that you haven't circumvented the copy protection, when the main selling point of your product is to make copies.

Making the copy is easy. It's still encrypted. Anything can copy the whole disk intact. The tricky part is playback of what you've copied. That is where RealNetworks proprietary knowledge of CSS comes in. They can create a player that will treat thecopied disc image as a physical DVD sitting in the drive. The fact that the RN made copy is not freely copiable evidently didn't impress anyone.

Okay, so if I own a gun it should be presumed that I'm going to shoot someone? If a car, then I'll get into an accident? Don't we have a presumption of innocence in the USA? Personally, I have a Blu-ray copy of Casino Royale that trashed itself and I sure would have liked to have made a backup so I wouldn't lose the value of the $30 I spent on it. But this idiot judge thinks that I'm going to make bootlegged copies of the disk so I don't!

"Fair use is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work," she wrote.

This doesn't make sense to me. The judge acknowledges the right of consumers to make "fair use" copies but says, despite their attempts to get the proper licenses and so forth, Real cannot produce a product to make said copies.

I seem to recall the argument that gov't must pay for abortions is that to not fund them would be the same as forbidding them and the courts say that can't be done. So, I would want to know from this judge, why is forbidding Real's (and similar) products that enable consumers to act on their "fair use" rights not the same as taking those rights away?

Originally posted by hardedge:Okay, so if I own a gun it should be presumed that I'm going to shoot someone? If a car, then I'll get into an accident? Don't we have a presumption of innocence in the USA? Personally, I have a Blu-ray copy of Casino Royale that trashed itself and I sure would have liked to have made a backup so I wouldn't lose the value of the $30 I spent on it. But this idiot judge thinks that I'm going to make bootlegged copies of the disk so I don't!

It's not the 'idiot judge's choice. The Judge is just performing their function in the machine that is the government.

It's the 'World Intellectual Proprety Orginization' that made created treates that the USA signed in 1996.

It was Representative Howard Coble, from the 6th District of North Carolina, that introduced the DMCA act to the House in 1997.

And it was the Rebublican Congress that 'perfected' and approved the bill. (really it was both sides of the isle that loved this Bill)

Then it was Bill Clinton that signed those laws into effect on October 12, 1998.

Those are the people that are at fault. It was their reasoning, their choices.

I think that if MPAA/RIAA wants rights forever then they need to support it forever. If my disk of "Cars" don't play after 40 years then MPAA or Disney need to ship me a new one. if my LP of the Louis Bros. is worn straight then the rights holder of that IP should find all songs of that album and carve a new LP and ship it to me, FREE OF CHARGE. If I can't do it for my self then the one who is supplying it should do it. GM will still work on your car after warranty, why not the them.

"Fair use is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work," she wrote.

Originally posted by hardedge:Okay, so if I own a gun it should be presumed that I'm going to shoot someone? If a car, then I'll get into an accident? Don't we have a presumption of innocence in the USA? Personally, I have a Blu-ray copy of Casino Royale that trashed itself and I sure would have liked to have made a backup so I wouldn't lose the value of the $30 I spent on it. But this idiot judge thinks that I'm going to make bootlegged copies of the disk so I don't!

It's not the 'idiot judge's choice. The Judge is just performing their function in the machine that is the government.

It's the 'World Intellectual Proprety Orginization' that made created treates that the USA signed in 1996.

It was Representative Howard Coble, from the 6th District of North Carolina, that introduced the DMCA act to the House in 1997.

And it was the Rebublican Congress that 'perfected' and approved the bill. (really it was both sides of the isle that loved this Bill)

Then it was Bill Clinton that signed those laws into effect on October 12, 1998.

Those are the people that are at fault. It was their reasoning, their choices.

The judge could have declared the DMCA is in violation of fair use laws or the constitution, etc.

"Fair use is not a defense to trafficking in products used to circumvent effective technological measures that prevent unauthorized access to, or unauthorized copying of, a copyrighted work," she wrote.

I guess the word "effective" needs to be defined. To me, once a technological measure is circumvented it is no longer effective.

The word 'effective' is defined in terms of law. An effective method is one that requires effort to breach, not one that cannot be breached. A password is an effective technological measure, a message box that says 'no copying' being your technological measure is not.

However, this judgement is stupid, primarily because of the 'hidden and secret' terms in the licensing agreement.

That product is idiotic. Free software such as dvdshrink or dvd decrypter does this for free and have been around for years. If you want to buy software then buy AnyDvD to remove the dvd protection and CloneDVD to copy the dvd.

Nothing makes me feel more despair about this shitty world than the complete and utter realization that the Government, which is supposed to be protecting your rights, is the one that is actively destroying them and stripping them away, especially when they use completely horrible logic like this to do it.

Here is something for you. You can have it so long as you can figure out a way to open it. However, you will never figure that out on your own, you will need to get help to do it. However, you cannot have any help in this matter. Enjoy your new thing!

Originally posted by akuma_619:That product is idiotic. Free software such as dvdshrink or dvd decrypter does this for free and have been around for years. If you want to buy software then buy AnyDvD to remove the dvd protection and CloneDVD to copy the dvd.

The theory behind the product (and what Real believed they had all the licensing for) was to provide a means to do this while being completely and absolutely legal (no need to bypass the DRM as the product left the DRM in place within a licenced setup).

I'm not a fan of the current setup of DRM, but short of clearly defining fair use, banning DRM and making all other forms of infringing usage a criminal offence, I'm not sure what to do about it. Content providers do have a right to protect the value of their product, just as consumers have the right to genuine fair use (such as format shifting) of their purchased content.

I don't understand this ruling. Maybe Real violated their license (I don't know what it contains, so I can't form an informed opinion on that), but how, exactly, are they circumventing an "effective technical measure" by allowing a copy - complete with CSS encryption intact?

Or does Real get in trouble when they allow *playback* (where the decryption of the CSS finally occurs) of the copied DVD? I guess this is presumably problematic if Real violated their license?

Originally posted by dolph:The word 'effective' is defined in terms of law. An effective method is one that requires effort to breach, not one that cannot be breached. A password is an effective technological measure, a message box that says 'no copying' being your technological measure is not.

Does that mean that using ROT13 is effective? It takes effort to breach. How about doing it twice so it's doubly effective? The whole thing is ridiculous.